Public Citizen represents journalist Ed Brayton in this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel the Office of the United States Trade Representative (USTR) to produce a copy of the compensation settlement agreement between USTR (on behalf of the United States) and the European Union announced by USTR on December 17, 2007. That agreement was reached in response to the United States’s decision to invoke Article XXI of the General Agreement on Trade in Services to amend the U.S. schedule of commitments under the World Trade Organization (WTO) to exclude the U.S. gambling and betting sector.
After a 2007 WTO ruling authorized trade sanctions because the United States had failed to conform U.S. gambling laws to WTO rules, the Bush administration announced it would remove the gambling sector from WTO coverage. But to do so, the U.S. was required under WTO rules to negotiate compensation for other WTO countries affected by the loss of revenue. Although it announced that deals had been reached with the European Union and other countries, USTR refused to release the details of the compensation agreements.
In response to Brayton’s FOIA request, USTR contended that the settlement was classified and cannot be released as a matter of national security. In this lawsuit, filed in the U.S. District Court for the District of Columbia, Public Citizen contended that the settlement was not properly classified under the applicable Executive Order, and thus, that it was improper for USTR to withhold the document on that basis.
After the case had been briefed on summary judgment, USTR released the requested document.
Brayton moved for an award of attorney fees, but the district court denied the motion, holding that he was not entitled to fees because the government’s decision to withhold was correct as a matter of law. We are appealing the denial of attorney fees, arguing that, after the OPEN Government Act of 2007, the merit of the government’s original position cannot be dispositive of a motion for fees.